Category Archives: Pinterest

This is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog. I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer. I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year. Worth Carroll wrote the answer so all credit to him. If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently? When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well. Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions. Take a read after the break and see if you agree.

For the first time in several years we have some significant new entries to the social media application world in the form of Meerkat and Periscope. Both of these applications allow users to quickly and easily provide Personal Live Streaming (PLS), meaning they can start shooting video and instantly sharing it on social media. No shooting video and uploading to YouTube/Instagram/Vine, this is an ongoing live stream complete with user interaction. In all likelihood this is a function that other platforms can provide as well, especially as our handheld technology continues to grow in processing power and our wireless bandwidth continues to grow. But for now these are two significant players in an emerging space that come with some intriguing legal issues.

After experimenting with the two applications, including an hour-long live cast of my podcast (all about geek culture, if you’re interested you can check out the podcast on iTunes or our website) I put together this quick look at some of the high level legal concerns for brands and organizations who are thinking about getting involved with PLS. Is it too much to say as brands develop a Go-To-Meerkat strategy? It is? Sorry.

Because I’m a lawyer there are, of course, three main risks to be concerned about. And, oh, how convenient, they spell out YES so we can make a great blog post title. Those three concerns are YouTube+/-, Engagement, and Saved Streams. Okay, I guess technically that would spell YESS but that sounds reptilian and I’m trying to avoid that easy lawyer joke. So YES it is.

Because professional courtesy.

Also please know this is a highly dynamic area. Meerkat was first to market but Twitter had already acquired Periscope and was preparing its own launch while Meerkat was getting tons of press at SXSW. So Twitter cut off some important access to Meerkat (both apps use Twitter for crucial functions). This kind of activity may continue for others that try to create a similar service on the backbone of an existing one, and we’re sure to see completely independent services start up that tout their protection from such antics. But in a new field with this much attention we are bound to see significant moves in functionality and usage over the next several months, so stay tuned for additional posts on the subjects.

YouTube+/-

Personal Live Streaming is a video stream and so it carries most of the same legal concerns as any video content an organization would post on YouTube. But the live component of PLS makes for some interesting additions and subtractions to your standard legal analysis of video content.

On the plus side, or additional analysis you should do, you will need to consider the environment in which the stream will be recorded. Since these streams go out live you will not be able to review them for their content prior to publication. That video your marketing team did with that catchy, unlicensed Top 40 hit? Yeah, you can review that before it goes on YouTube so that Marvin Gaye’s estate doesn’t sue you for $7 million but you can’t review it before it streams. So the environment and context of the video stream should be considered for any legal threats with the team putting the stream together–you won’t get a chance to fix it later. Consider copyrights, trademarks, privacy concerns, licensing issues, and please at least briefly discuss defamation law with your on-screen talent/broadcaster.

On the minus side, or some mitigating factors that YouTube doesn’t traditionally have, these streams are not intended to be permanent. Risky activity could be mitigated by the fact that the videos are generally only visible while they are being created (except see our third part, Saved Streams, below). If someone on camera says “Top Hollywood Celebrity explicitly endorses Company Product!” during a live stream, hopefully the live and non-recorded nature of the film could mitigate any potential rights of publicity claims (or at least damages). By the way, don’t invite that streambomber to your next livestreams.

Unless it’s a dolphin. Dolphins can photobomb or streambomb all they want. It’s the law.

Engagement

Both apps provide similar ways to engage with stream watchers. Stream watchers can like a stream or send a comment to the broadcaster and those watching. Both apps also have no moderation abilities at this point–so if someone starts spamming your video broadcast with explicit text or spam there is nothing you can do.

One crucial way in how the apps differ on engagement is the comments. Meerkat comments are sent via Twitter–they are sent as Twitter replies to the original tweet announcing the Meerkat broadcast. This can be both good and bad in terms of monitoring and recording the comments and in who can see the posted comments. Periscope comments are limited to the video stream itself, also with its own benefits and drawbacks. One consideration organizations should make when using PLS is whether they will have an individual conduct the streams or a small team. The single user and video shooter can be very effective and personal, but it can also be difficult to engage an audience based on personal content (a speech, a demonstration, etc.). Having one person operating the camera (well, phone/tablet camera) while another is being filmed will help to monitor video issues and comments, or you may even want to separate the duties between people to operate the camera and another to watch the comments. There’s no right answer, it’s just something to think through.

Unless you have one of these. Because now you have extra fingers to use and you are awesome.

Saved Streams

PLS is mostly about current video but both apps have some replay abilities that may bring legal risks or make you consider which application your organization may conduct its own experiments. Meerkat streams are public and they had to issue a quick fix recently to prevent anyone from hijacking another user’s stream. That security issue aside, Meerkat faces another legal risk in terms of recorded sessions. Meerkat gives broadcasters the option to save the video to their phone/tablet at the end of the session but there is already a service that will allow any user participating in a Meerkat stream to send out a single hashtag that will record the stream and then post it to YouTube.

The idea that some third party can record and post your stream even if you yourself do not feels quite risky depending on the content that is being sent out. In many ways this is no different than a user sending a photo on Snapchat that will be deleted but the recipient uses their phone’s operating system to take a screen capture of the image. But if your organization doesn’t use Snapchat to send out photos then that may not be an analysis you’ve done. So it’s something to consider.

Pictured: extensive legal analysis.

Periscope, on the other hand, does not currently have a way for third parties to easily record your stream and post it (although there could certainly be a way to record video sent to watcher’s phones/tablets/computers). The app will, however, allow you to upload the video to Periscope’s servers and allow other users to watch or re-watch the stream for a period after it was filmed. That at least gives the broadcaster some control over how long the video will live but is also something that should be considered.

It’s exciting to see a new function and communities spring up in the social universe. We haven’t had a significant new step like this since Pinterest many years ago. Whether this remains a thriving independent community or more of a feature that everyone will enable (like checking in from a few years ago) remains to be seen.

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career. Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books. (Go with me, people.) For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic. They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas. Nutshells get right to the point and provide essential information on the overall legal topic. I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section. Can you spot it?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic. My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom. His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now. There isn’t a wealth of case law on social media issues, but there are certainly cases out there. In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t. Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me. He’s just a more talented and better looking version of me who can also sing and dance and has a better accent. The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest. Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts. When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering. I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value. To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way. An even bigger thanks to my family for putting up with my little side projects.

2014 legal risks include the very real possibility that you drop a crystal ball on your foot. This will hurt.

I’ve been privileged enough to be connected with a variety of brilliant, articulate social media attorneys around the country. Recently one of them asked the group for their top social media legal concerns (not necessarily those of their respective employers) and in great blogging tradition I thought “I can totally steal that and make a blog post out of it!” But, being all lawyerly, I asked for their permission first. And then I turned it into a list because the moment you put a number on something the lizard part of your brain takes control of your clicking finger and you cannot resist. You know it’s true.

All links are provided by me to help provide some context or background or additional reading. But I didn’t make any links a numbered list because then you’ll never come back.

Without further obligatory filler text, here are the top 2014 social media legal concerns. Read the whole thing and you’ll get a special bonus at the end. It’s like the extra scene at the end of a Marvel movie except there’s no Nick Fury. Probably.

1. Use of Other’s Content

Jim Dudukovich, Coca-Cola (and proud Vespa owner): The recent $1.2MM jury verdict in favor of Daniel Morel regarding the use by Getty and Agence France-Presse of photographs Mr. Morel had posted to Twitter regarding the Haiti earthquake could be a seminal case regarding the danger of relying on a platform’s terms of service to re-use others’ content; the fact that the media was held liable certainly doesn’t bode well for marketers, who are not entitled to as great a license as the press.

Ryan Garcia, Dell: This is a big one because there are two areas where clients can get confused. First, when content is marked “Public” by a platform that doesn’t mean the information is truly public. At least not all the time. Sometimes it means that, mostly it means the content can be freely shared within that platform. Second, the convergence of social platforms such as Facebook purchasing Instagram leads some people to think that the content can be freely shared between platforms and that’s just not the case. They are both teachable moments but you have to remove that misunderstanding quickly.

2. Changing Promotional Rules

Chris Irving, Publishers Clearing House: Keeping abreast of ever changing Facebook promotional rules and making sure Marketing understands the “relaxed rules” are not an invitation to do everything and anything.

Jim Dudukovich, Coca-Cola: Although this one goes in the opposite direction from Facebook’s, imposing greater restrictions on marketers’ ability to conduct promotions on the platform [Pinterest].

3. Disclosures for the Convergence of Social with Mobile

Brian Abamont, State Farm: How do companies go about ensuring compliance with all of the disclosure and notice expectations, not just in terms of actually including them but also the expectations as to how they are presented in a form factor that puts real estate at a premium and has more limited presentation capabilities (e.g. just in time notification and proximity of disclosures to content). How can this be addressed with little standardization across the mobile OS environments for these types of things?

Brian Abamont, State Farm: I would also place a strong “seconded” support behind Chris’ point about privacy and add that the rules are changing at a rapid pace across not just federal/national levels but also various states and provinces across North America and the rest of the world. Furthermore, in some cases, the rules have been created after an alleged offense and seemingly applied retroactively, at a minimum from a reputational standpoint.

Daniel S. Goldman, Mayo Clinic: Probably less a legal issue (at present), though I think there will be increasing regulation over time. I think the issue is the public’s increasing concern about the data that is being collected/monetized by social platforms and by commercial entities and what can be divined about them from that data. This plays out across many spectrums. The most obvious is the negative reaction to targeted/behavioral ads, but also reflects a concern about analytics that is done on data that is collected (e.g. the “Target Article”). I think there is a growing public perception that there is a digital “permanent record” about all of us that companies are mining to sell them stuff.

5. Fraud Fighting

Chris Irving, Publishers Clearing House: Expanding efforts to fight scammers and fraudsters on the internet who would use our name to deceive. Efforts include enhanced consumer education, public private partnerships and supporting stronger criminal penalties in Jamaica where a majority of these scams are originating.

6. Increased Attention to “Commercial Creep” and Transparency

Jim Dudukovich, Coca-Cola: This manifests itself in a few ways, from the FTC’s workshop on native advertising and the search for answers as to what consumer expectations are and the scope of consumers’ ability to distinguish between editorial/creative content vs. sponsored content/branded integration, to the NY AG’s “Operation Clean Turf” (investigating and penalizing the practice of publishing fake reviews). Not to mention the attention the NAD has placed on native advertising/transparency (eSalon and Mashable/Qualcomm).

7. Social Behavioral Advertising

Brian Abamont, State Farm: Typically, [behavioral advertising] has applied to web based activities and were easily covered by privacy policy and “About our Ads” information pages. As the level of information from social is much deeper than a typical web site visit and marketers looks to make more advanced use of that information, how do businesses present proper consent/disclosures in the social platforms?

8. Reputational Public Relations and Marketing on Social Media

Jim Dudukovich, Coca-Cola: We’ve seen more and more instances in which the speed of social media marketing has trumped judgment, and major brands, either directly or through agencies, and sometimes even accidentally, have pushed out messaging that they later regretted (and perhaps wouldn’t have published had they engaged in a more rigorous internal review process).

Jessica Fredrickson, Walmart: Blurred lines between marketing and reputational PR. Our clients are increasingly using reputational “advertising” to promote our good works (#RealWalmart). Whether these messages translate into sales isn’t clear and how these messages should be managed through a review process and with appropriate disclaimers is not consistent.

9. Changes to TCPA Express Written Consent Rules

Chris Irving, Publishers Clearing House: Providing internal guidance to clients on the changing TCPA consent requirements applicable to text messaging campaigns as well as the necessary vetting for third party ads appearing on our sites where there is phone collection.

10. Crowdfunding

Ryan Garcia, Dell: The JOBS Act changes continue to come in and we have a market where many more people are comfortable with Kickstarter and other crowdfunding platforms. The possibility of actual equity investment for the masses, as opposed to paying for items that help fund a project, has huge positive and negative ramifications. People getting upset over late deliveries for a Kickstarter project are one thing–thousands of equity investors being upset over the direction of a brand new company is another altogether. Here’s a longer post on the subject from Perkins Coie.

And here’s your bonus as promised in the headline (and at no extra charge to you!). Here’s a list of the top social media legal issues as presented by Mark Bisard (here’s his Twitter because he’s social!), social media and general digital guru for American Express. These are all the details he provided or else he could have been incorporated into the main list, but instead it’s a bonus list for you. And there’s 16 things here, which makes it approximately 60% longer than the list above! Enjoy and happy holidays!

Year of the Hashtag

Selfie is word of the year (see reputational risk parallels with Obama photo)

Internet of Things (TRENDnet and FTC workshop)

Virtual Currencies (Largely BitCoin but also push to have VC like Farmville regulated like other FIs)

Pin It To Win It contests are dead. At least in the format most people are used to. In a way, they can continue by eliminating just one word–the second “It.” If you want to know why, this guide should help you understand.

This all came about when a well-respected blogger and marketer, Amy Bair of Resourceful Mommy, received notice that the Pinning Parties she held for various clients were violating Pinterest’s terms. I had the opportunity to speak with Amy in the midst of some back and forth with her and Pinterest and I’m glad to see some additional guidance come from Pinterest in terms of emphasizing the rules they have put in place and how they will enforce them. Here’s Pinterest’s latest blog post on the subject and their Acceptable Use Policy which contains the contest restrictions. I’ve prepared this guide to give some additional practical guidance, similar to the Facebook guide a few weeks back. As always, don’t forget about my important disclaimer to the side and be sure to check with your own attorney for specific applications to your business/brand/whatever.

Before getting into the practical aspects of the Pinterest rules, it’s helpful to go over the Social Media Marketing Prime Directive. At least, that’s what I call it because SMMPD sounds funny. It’s something that my friend Jim Dudukovich (a marketing attorney at a very well-known brand) likes to say a lot: “Social media was not made for marketers.” His other favorite saying, “My Vespa is broken” is also good, but less applicable. Social media sites need marketers to survive (mostly in terms of the advertising revenue they bring in) but the sites are made for the users, not the marketers. So when a platform is making rules about marketers they are usually doing so with the user in mind, not the marketer. That can, quite frankly, make the marketer’s job harder in how things change and evolve, but ultimately it should help by keeping users on the platform that marketers want to use.

Keeping that Prime Directive in mind, along with Pinterest’s stated purpose of being about their users’ inspiration, let’s take a look at their contest rules. These are the things that you cannot do for a contest on Pinterest:

Suggest that Pinterest sponsors or endorses you or the promotion

Not mentioning these things is something obvious to larger marketing organizations but a good point for smaller groups to understand. Sponsorship brings certain legal liabilities and endorsement carries some legal and disclosure requirements–none of which a platform like Pinterest wants. You can run a contest on Pinterest, just don’t say that the contest is brought to you by Pinterest or Pinterest loves this contest (even if they secretly do).

Require people to pin from a selection

This is a big one and what effectively kills Pin It To Win It (PITWI) contests as we know them (they’ll evolve, read on). The traditional PITWI contest asks you to pin an item from a web site or section of a web site and then they will have one user win something they pinned–one item or an entire collection, whatever. This kind of contest is no longer allowed because contests cannot limit where users pin from. You can have them pin on a topic, but not from a particular site or only items of a particular brand.

What remains unsaid is whether you can require a single pin for contestants from a collection as part of the overall entry. I know many contests do this as a way of tracking users entering the contest but that arguably violates this requirement and may best be avoided.

This rule will probably make many brands less interested in doing PITWI contests since they can no longer have users showing what brand items the users like best–instead the users may select items from competing brands or things not related to the brand at all (note that the rule says “selection” and not “web site”–to me that means you can’t even restrict pins to a particular product or line but allow pins to come from multiple sources and any potential subject).

Since brands running PITWI contests typically want the It to be an item they make, this limitation just isn’t possible anymore. If someone wants to enter your contest without pinning your item, you have to let them. And since they can’t win a zero prize (without a brand appearing heartless at best) you’ll likely have to set up some alternate prize if you can’t give them what they pinned so the winner still receives something. For example, I could see a kitchen store running a PITW (notice the dropped final I) contest where users pin their favorite kitchen things–recipes, gadgets, design, etc. When the winner is selected perhaps the rules state the store can either choose to give the winner something they pinned (blender, etc.) or a gift card. That seems to meet this requirement but possibly doesn’t have the same brand benefits as an old PITWI contest. Which, according to the Prime Directive, is okay.

Make people pin your contest rules

This one seems to address a logistical rule that some contests put in place for two very good reasons. First, contest rules don’t inspire people. Unless you’re a social media law geek like me or a marketing law geek like Jim. Since Pinterest is trying to makes pins be about inspiration, it makes sense to reduce pins that don’t inspire people. And second, reducing those re-pinned rules cuts down on the spamminess (it’s a word because I say so) of a contest. If you’re looking at a general Pinterest feed you don’t want to see a bunch of rules in between recipes, craft ideas, and other things designed to inspire you.

Run a sweepstakes where each pin, board, like or follow represents an entry

Again, this rule cuts down on the spamminess of a contest. Keeping these activities authentic will help keep users on Pinterest, so it meets the Prime Directive too.

Encourage spammy behavior, such as asking participants to comment

First, please note that if spammy is a word then so is spamminess. Case closed! Also, this is a catch-all for what the previous two rules were already hinting at. Here, Pinterest is even acknowledging that there may be some super clever marketers out there who come up with a way to run a contest that meets the letter of all these rules but still looks like spam when other users browse Pinterest. That won’t cut it. So you can be creative, but you’ll need to avoid spam. Just like life.

Ask pinners to vote with pins, boards, or likes

Another spam-prevention rule but also a really good idea because objective voting to determine a winner always gets gamed. And that makes people participating in your contest very unhappy. Here it could be even worse because someone could create a million boards and that doesn’t help anyone.

Require a minimum number of pins

Less spam, less work for entrants. Yes, it means someone could enter your contest with a single pin that potentially has nothing to do with the actual contest. But that may also inspire marketers to do something a bit more creative than just having all the entrants put in a pool and a random winner is selected. For example, nothing in this (or other rules) prevents you from having a contest where the board that provides the best inspiration to “The Greatest Gift I Could Give My Grandfather.” Maybe the winning board has one pin, maybe it has 5 that tell a great story. The marketer will need to figure out how that contest is judged and it will definitely require more work than a random drawing, but wouldn’t that get better entries and provide more inspiring content (a win for the brand and for Pinterest)?

Ultimately these changes may require marketers and brands to abandon some of the old ways of doing contest on Pinterest, but if they can adapt their plans or come up with new ways of running contests they may find a better way to engage Pinterest users and ultimately promote their brands within that population. Just remember–spamminess is a word and it’s bad.

You will care about our privacy or we will make you disappear. And we’ll sing Justin Bieber while doing it.

The United States ranks privacy concerns somewhere between finding Pinterest projects we can actually pull off and how long is the line for Cronuts. We just don’t care much about privacy compared to the rest of the world. That’s true from both the government’s perspective (not just the latest NSA issues, or non-issues depending on how you look at it) and the view of the public who’ve collectively shrugged over a variety of privacy concerns. We’re a far cry from Europe where they have documented not one but two different Fundamental Rights that discuss privacy in a digital age:

There are two notable exceptions to our lack of privacy interest. First is medical information, because nobody needs to know about that mole. Second is anything involving The Children. Because we believe The Children are the future. Secure their privacy and let them lead the way. Show them all the Instagrams they possess inside.

When it comes to meaningful privacy legislation, unless it involves medical information or The Children, it just doesn’t happen. So it isn’t too big of a surprise that two bills pending in the California state legislature are dealing with social networking privacy and The Children. SB-501 deals with collecting personal information from The Children on social networking sites and will require sites to remove any collected information within 4 days of a request. That bill is far less interesting than the other one currently working through committees.

California bill SB-568 has the super-sexy title of “Privacy: Internet: minors.” Or, as all the cool kids are calling it, P:I:m. The bill tackles two issues–not marketing certain products to minors (such as guns, alcohol, and spray paint–which means your idea to launch a website that tries to get kids to drink vodka while packing heat and then go tag a building is totally not cool) and forcing social networking sites to remove content posted by a minor upon request.

The second issue is one we’ve heard before. The Children are young, you see, and so we should give them the ability to remove those embarrassing duckface photos they’ve been posting for the past year. As soon as they realize how embarrassing they are. Unfortunately, this somewhat noble goal isn’t really addressed by P:I:m because of some giant loopholes in the law.

The first giant loophole is that while the original content can be taken down, any reposted content by another party is not subject to the request. So the moment someone shares that photo or copies it to their own pages/files, all control is gone. While other sections may force that photo to not be identified with the person making the request, the content itself will still remain online.

The second giant loophole is that these requests will not need to be honored if the platform provides a way for the user to remove the content themselves. If The Children can’t read the manual, this law doesn’t help them. And are there any platforms still out there that don’t allow you to remove your own content.

The third giant loophole isn’t as much a loophole as a design flaw–it only applies to requests by minors. Yes, we will protect The Children but only up until the day they are 17 years and 364 days old (or 365 for those rare Leap Babies, unless they insist on being 1/4th of their actual age in which case they are annoying and will lose all protection). The moment they turn 18 years old then they are ousted from The Children faster than David Lee Roth is kicked out of Van Halen (again). This may not be a loophole, but it is a strange design decision to only offer some protection to The Children while they are still one of The Children.

And ultimately, given these three loopholes, who is this law protecting? Any truly embarrassing content will be reposted by others, or it will be on a platform where you can delete your own copy, or by the time you are embarrassed by it you are likely over 18. In any of these cases the law won’t help you, so who will it help?

I tried to ask the author of the bill who he thought would be protected by this new law. I thought it was a relevant question since, even though it’s only a state law, it will likely have national implications since California is a big state (and has the headquarters of some big social networks whose names rhyme with Schmacebook, Schmitter, Schminterest, SchminkedIn and Schmoogle). Unfortunately, I can’t. You see, although the bill’s author Senator Steinberg is concerned about The Children and social networking, his website only allows you to contact him if you live in his district.

BuzzFeed may be the most illegal site you’ve ever visited. I say may be because I don’t know your full browsing history–I just work for a technology company, I’m no NSA Analyst. But given that 40 million people visit the site a month, odds are likely that you’ve been to the site, seen an article shared from the site in your social media feeds, or possibly shared an article from the wildly popular site. A recently filed lawsuit threatens the BuzzFeed business model and raises the question of whether BuzzFeed is the worst copyright infringer in social media today–potentially outstripping the issues that have been raised for Pinterest.

The lawsuit was filed by photographer Kai Eiselein, a 30+ year photographer who has worked as a photojournalist and other photography positions. His photo, Contact, was copied by BuzzFeed for one of their lists The 30 Funniest Header Faces (which, if you visit, is now the 29 Funniest Header Faces…more on that later). The lawsuit points out that BuzzFeed copied the image despite the photograph being protected on Flickr, where it was originally posted. Typically, if you want to save an image while browsing a website you can right-click on an image and choose an option to save the image. On Flickr, this functionality can be disabled–if you right-click on Eiselein’s image then a copyright notice pops up telling you that all rights are reserved. The lawsuit also points out that BuzzFeed intentionally ignores not just pop-up notices like Flickr but also posts several images that contain watermarks (several are still present in the list). Eiselein complained to BuzzFeed and they later removed the image and changed the name of the list but this wasn’t before dozens of other sites had copied the list.

Eiselein has sued not only for direct infringement by BuzzFeed but also for contributory infringement–knowing inducing another person to violate copyright protections. This is an interesting angle on an otherwise typical copyright infringement lawsuit since BuzzFeed’s entire business model is built upon the idea of creating stories that will be shared by readers. For BuzzFeed to succeed, it needs readers to copy and share its information. This triggers a tricky area of law that the Supreme Court has weighed in on two significant cases.

In 1984, the Supreme Court decided Sony v. Universal Studios (link is to the syllabus of the case rather than the full text, because I’m just that nice). Sony was accused of being liable for copyright infringement for uses of its VCRs (called VTRs by the Court back then, how quaint). This led the Supreme Court to set a rule that distributing a product that was capable of substantial non-infringing use would not make the equipment manufacturer liable if users also used that device for infringement. Since time-shifting (fancy term for recording a show that you watch later) was considered non-infringing then Sony was not liable for merely distributing VCRs. This rule was used for decades by courts over newer technologies that might enable other intellectual property infringement but also had substantial non-infringing uses.

By the time the 21st century landed, technology had gone through significant changes and the Court was again asked to consider if a technology provider could be liable for infringement by its users in the 2005 MGM v. Grokster case (again, syllabus, you’re welcome). Grokster was one of the early peer-to-peer file sharing services and evidence showed that they distributed their software with the suggestion that users distribute copyrighted music and movies via their tool. The Court said that the Sony rule of protecting a technology that has substantial non-infringing uses does not require the law to ignore the intentional infringement and inducement by a technology provider. Following this unanimous ruling, Grokster ceased operations within months.

The issue here is whether BuzzFeed (and similar websites) is closer to Grokster or a VCR. Several factors seem to go against BuzzFeed. First is their intentional ignoring of copyright protections, whether watermark or popup notices informing users that the photographer doesn’t want their image placed everywhere possible. Second is that the safest defense from these claims, the Safe Harbor provisions of the Digital Millennium Copyright Act, don’t apply because this was not an unknown BuzzFeed user posting the infringing content but BuzzFeed itself in the form of one of their paid staff writers. Third is BuzzFeed’s founder.

Jonah Peretti already had a history with social media and viral content before founding BuzzFeed. Arguably his most well-known viral content encounter was when he tried to order a pair of customized Nike shoes with the word SWEATSHOP stitched in the side. The resulting email exchange with Nike went viral before going viral was even a term. Peretti’s experiences with viral content and research at the famous MIT Media Lab influenced his outlook on media. He has said that he is more concerned with information being widely distributed rather than it being high-quality: “The biggest misconception people have is that quality is all that matters. The truth is that quality helps, but there’s a ton of high-quality things that don’t go anywhere.” This tone from the top may influence BuzzFeed’s business practices to their detriment.

Peretti also believes that BuzzFeed’s articles are protected by Fair Use. That’s a very difficult case to make. As any copyright lawyer will tell you, the moment that you’re hanging your hat on Fair Use, a notoriously fuzzy and difficult defense, you’re signing up to a lot of legal headaches. In this case, Peretti believes that BuzzFeed articles are transformative and so they are protected. That’s not exactly a sound legal theory for two huge reasons.

First, Fair Use is determined by analyzing four factors. Yes, the first factor (purpose and character of the work) does look at whether the resulting work is transformative, but Fair Use requires analysis of all four factors. It isn’t a legal sudden death where the first time you win a factor then it’s game over in your favor. BuzzFeed would need to win the analysis on the whole, and given then other three factors I think it’s highly unlikely to do so.

Second, I’m not so sure BuzzFeed is transforming anything. Copying a bunch of photos into a list does require some creative effort, but at best it is curation and not original authorship. I’m not saying it’s easy, but it isn’t transformative to the extent the Fair Use exemption will protect its efforts.

To this end, BuzzFeed may be worse than Pinterest when it comes to copyright–they are infringing rights directly and ignoring intentional attempts by authors to prevent copying. Whether this lawsuit is successful in changing BuzzFeed’s (or similar sites’) practices remains to be seen–a lot can happen in a lawsuit. But rest assured that even if BuzzFeed loses the case I’m sure we’ll see 27 puppies reacting to the verdict within minutes.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.